Mewa Lal vs State
2017 Latest Caselaw 8106 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- JAIL APPEAL No. - 712 of 2010
 
Appellant :- Mewa Lal
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Faurav Kakkar, A.C.
 
Counsel for Respondent :- A.G.A.
 
and
 
Case :- JAIL APPEAL No. - 713 of 2010 
 
Appellant :- Savitri 
 
Respondent :- State 
 
Counsel for Appellant :- From Jail 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Gaurav Kakkar learned Amicus Curiae for the appellant, Mr. Nagendra Bahadur Singh, learned A.G.A. for the State and perused the record.

2. Since both the appeals arising out of a common impugned judgment and order dated 24.11.2009 passed by l Additional District and Sessions Judge, Fast Track Court No.11, Chitrakoot in Session Trial No.120 of 2007, therefore, both the appeals are being decided by this common judgment.

3. Both appeals have been filed against the judgment and order dated 24.11.2009, passed by the Additional District and Sessions Judge, Fast Track Court No.11, Chitrakoot, whereby the accused-appellants was convicted for offence punishable under Sections 302/34, 328/34, and 201/34 I.P.C. and sentenced to undergo for life imprisonment and fine of Rs.10,000/-. In default of payment of fine, he shall undergo for the simple imprisonment for three years for offence punishable under Section 304/34 I.P.C. He further sentenced to undergo three years rigorous imprisonment and fine of Rs.3,000/-. In default of payment of fine, he shall undergo one year simple imprisonment for offence punishable under Section 328/34 I.P.C. He was sentenced for three years rigorous imprisonment and fine of Rs.3,000/-, in default of fine he shall undergo one year simple imprisonment for offence punishable under Section 201/34 I.P.C. All sentences shall run concurrently.

4. Brief facts of the case.

(I) The story of the prosecution is that the complainant Ram Baran made a Tehrir on 27.05.2007 in police station Manikpur, Chitrakoot and in the said Tehrir, it was stated that on 27.05.2007, near Patha-Col Development Committee under a tree an old aged woman was sitting and her condition was not very good and after some time at 3:00 a.m. she was found dead. On the basis of said Tehrir, the F.I.R. was lodged against the unknown persons. He started in the complaint that the said old woman was seen to came out from the house of one Brij Mohan Gupta, resident of Mahabir Nagar. He further stated that when he along with Ram Baran Tripathi and Prem Narayan Tripathi along with other persons went to the house of Brij Mohan Gupta, they found the dead body of a child aged about one and a half years was also lying in the room of his house. The body of the child was recovered, after enquiry, they came to know that the person namely Virendra was staying there on the rent and he was seen at about 12:00 noon near the house of Brij Mohan Gupta.

(II) The said Tehrir was entered in the G.D. as G.D. No.17 on 28.05.2007. Sub-Inspector Laxmi Prasad Yadav went to site, where the dead body of the child of one and a half years old was recovered and sealed. Panchayatnama EX.Ka-16 was prepared and dead body was sent to the hospital for post-mortem. On 29.05.2007 at about 12:30 p.m. Dr. A.K. Mohan conducted the post-mortem of the dead body of child and prepared prost-mortem report Ex.Ka-3.

III. The Inspector Manikpur, Umesh Kumar started investigation of the aforesaid crime and recorded the statement of the witnesses under Section 161 Cr.P.C. He inspected the site of the incident and prepared site plan as Ex.Ka-5. He recovered several articles from the place of incident and seized by him and made seizure memo as Ex.Ka-7. He seized the cloths of woman and child from the place of incident and make a seizure memo as Ex.Ka-9.

IV. During the investigation of the aforesaid case, Brij Mohan Gupta had also filed a complaint in police station Manikpur, Chitrakoot and stated therein that on 09.05.2007, one person came to his house to take a room on the rent. He further stated in the complain that the person who came along with his Bhabhi aged 54 years, he informed the complainant that his name was Virendra Yadav, resident of Atra and at that time his age was 25-30 years. Brij Mohan further stated in his complaint that he has given his room on rent of Rs.400/- per month and he has taken advance of Rs.400/- from the tenant. He further stated in the complaint that on 26.05.2007 the tenant came with one old woman Gaudia, her daughter Chunwadi and a child of about one and a half years old.

V. On the complaint of Brij Mohan, the entry was made in G.D. On 09.07.2007. The investigation was started by Sub-Inspector Umesh Kumar. After completing the investigation, the Investigating Officer found sufficient material against the accused person Mewa Lal and Smt. Savitri for offence punishable under Sections 302, 201, 328 I.P.C. The charge-sheet was filed against the accused person before the competent court. After filing charge-sheet in the court, the matter was committed to the competent court for framing the charges and further proceeding.

VI. On 15.03.2008, the charges ware framed by the Additional Sessions Judge, Chitrakoot against the accused persons Mew Lal and Smt. Savitri for offence punishable under Sections 302/34, 328/34 and 201/34 I.P.C. The accused persons were denied the charges and demanded the trial.

VII. The prosecution in order to prove its case has examined eleven witnesses and twenty four material evidences. PW-1 Santosh Kumar, PW-2 Indrasen Gupta, PW-3 Ram Baran, PW-4 Kuber, PW-5 Dr. A.K. Mohan, PW-6 Sunita, Godhiya, PW-8 Dr. Rajeev Dwivedi, PW-9 Sub-Inspector Umesh Kumar, PW-10 Sub-Inspector Laxmi Prasad Yadav, PW-11 Dr. Sanjay Tripathi were examined as witnesses in the said case.

VIII. PW-1, Santosh Kumar stated in his deposition that on 27.05.2007, he saw a lady was lying on the Chabootara near the office of Development Committee, Manikpur. He further submitted that she was not looking well. He informed the police station, Manikpur that a lady was lying on the Chabootara and she was not looking well. On his information, police went to the place, where she was lying and found that she had already died. He stated in his deposition that the deceased came out from the house of one Brij Mohan Gupta. He further stated that in the house of Brij Mohan Gupta, a person namely Virendra Atra was staying on rent and an old lady came from the said rented room. On 28.05.2007, PW-1, Brij Mohan Gupta, Ram Baran Tiwari and Prem Narayan Tiwari went to Brij Mohan Gupta's house and inspected the room from where the old lady came out. The room was locked. When door was opened and the witness with other persons entered inside the room, they saw the dead body of a child aged about one and a half years was also lying there. He further stated in the deposition that from the room, where dead body of the child was recovered, there were lying lemon, sindoor, agarbatti and other articles of the worship. He stated in the deposition that the child found in the room might be the child of the deceased woman, who had died on 27.05.2007. He further submitted that the old lady who came out from the room met him and told him that her name is Gaudia. She told him that her daughter married with a person who was residing at Atra, she went to Atra to bring her daughter for treatment. It was further told that she along with her daughter came to Manikpur for the treatment. On 26.05.2007 both Gaudia and her daughter went to Kallu Khan and Kallu Khan had given some Bhabhuti. After taking Bhabhuti from Kallu Khan, she along with her daughter came to Railway Station, Manikpur to catch the train but she could not catch the train. She submitted that at about 7-8 p.m. one Virendra met them on Railway Station and introduced himself that he also belongs from Atra. He was staying in a rented room in the house of Brij Mohan Gupta. The old lady Gaudia further told him that the appellant brought them in his rented house and gave something to eat, after taking the food, both became unconscious. In the cross-examination, he stated that he has given a Tehrir on 28.07.2007 regarding that he saw a lady who was sitting near his office on 27.07.2007 and later on she was found dead. On 28.05.2007, he was informed that the appellant was also staying in the rented house of Brij Mohan Gupta from where the old lady Gaudia came out and narrated all the stories. He further submitted that in the said room the dead body of one and a half years old boy was recovered and he had also informed the police regarding the recovery of the dead body of the child in the said room.

IX. In the statement of PW-2 and PW-6 Indrasen Gupta son of Brij Mohan Gupta and Sunita daughter of Brij Mohan Gupta, they have stated on oath that the accused person has taken premises on rent of Rs.400/- per month. PW-2 Indrasen Gupta stated in his deposition that he identified the accused in Court and stated that he knew him and he further stated that on 09.05.2007 the accused person has introduced himself as Virendra and he came in house with his bhabhi (sister-in-law) who was sitting in the temple. He further stated that his father Brij Mohan Gupta was alive. The accused person asked his father to give one room on rent and on request his father has rented out one room premises to the accused at the rent of Rs.400/- per month. PW-6 Sunita stated in her testimony that on 09.05.2007, a person came in the house and met her father. The appellant asked rented accommodation, on the request of the appellant her father had given one room on rent. She further stated that the applicant had come with his bhabhi (sister-in-law). She recognized the accused person. PW-7 who is the main witness Gaudia has stated in the deposition that on 26.05.2007 the accused person gave poison to her and her daughter Chunwadi (deceased). She further stated that Chunwadi had one year old son. She stated in the deposition that the appellant murdered one year old boy. She further stated in her testimony that after giving poison to the Chunwadi and her, the accused person killed one year old body. After killing one year old boy, he went away after locking the room. She stated that due to the poison Chunwadi died in front of office of Vikas Samiti. She further stated that on 01.07.2007, when the photographs of accused was published in Amar Ujala newspaper then she recognized the appellant. PW-5 Dr. A.K. Mohan who has conducted the post-mortem of the deceased as unknown boy (son of Chunwadi), as per the Dr. report he was died before two days from the date of post-mortem. PW-8 Dr. Rajeev Dwivedi conducted the post-mortem of Chunwadi on 28.05.2007 but he did not find viscera in the body, therefore, it was ruled out that she was died due to poison.

X. After perusal of the documentary evidence, ocular evidence, medical evidences and hearing of the arguments advanced on behalf of the parties, the trial court has convicted the accused persons for offence punishable under Sections 302/34, 201/34 and 328/34 I.P.C.

XI. The accused persons had given statements under Section 313 Cr.P.C. They have denied the prosecution story and their involvement in the case. They have stated in the statements that they had falsely been implicated in the present case.

5. Mr. Gaurav Kakkar, learned Amicus Curiae appearing for the appellant has submitted that the present case is a case of circumstantial evidence, in which the chain of event is not completed. In fact, there is no clinching evidence available on record to actually connect the appellant with the offence of the said case. He further submitted that the case of prosecution regarding both deceased persons being poisoned stand absolutely falsified by the post-mortem report of the unknown lady and unknown male child as well the report of Science and Forensic Laboratory, as per which no poison was found in the sample sent for examination. Therefore, the prosecution has failed to prove its case with respect to poisoning. The conviction of the appellant under Section 328 I.P.C. is absolutely unjustified, unwarranted.

6. Mr. Kakkar further submitted that during the course of investigation, the Investigating Officer or even the other prosecution witnesses have failed to bring on record any article belonging to the appellant, which was shown to have been recovered from the alleged rented accommodation which further creates doubt about the entire prosecution case. He stated that in the present case even the dead body of the child had been found in the house of Brij Mohan Gupta, no F.I.R. or application had been given by him or any of his family members immediately after the dead body was found. The complaint has been given by Brij Mohan Gupta on 09.07.2007 after lapse of one month 13 days from the date of incident which creates doubt about the bonafide of the landlord.

7. It is also submitted that, as per the statement of PW-2 Indrasen Gupta, he had been shown with the press clipping on 01.07.2007, but despite the same, the complaint has been given by Brij Mohan Gupta only on 09.07.2007, and no plausible explanation has been given by the said persons for remaining mute for eight days. There are material contradictions in the statement of complainant Indrasen Gupta, PW-2 and PW-6 Sunita. It is further submitted that prosecution has not been able to assign or prove any motive to the appellant for commission of the said offence, and in absence of the same there appears to be no reason for the appellant to commit such a heinous offence.

8. It is argued that PW-7 Gaudia is key witness has made false statement during the trial. In fact there are material discrepancies apparent at large on the comparative perusal of the statement given by PW-4 Kuber and PW-7 Gaudia. He further contended that in the present case no proper test of identification parade has been conducted, and in absence of which there is nothing concrete on record to actually prove the involvement of the appellant in the commission of the said offence. The appellant has been roped in the said case solely on the basis of a press clipping, which was shown to the landlord Brij Mohan Gupta and family members. The Investigating Officer before whom the alleged confession would have been made by the appellant has also not been produced during the trial.

9. It is further submitted that there are material contradictions in the statement of PW-7 Gaudia with respect to the time and date when she had taken away by the accused-appellants from the Railway Station, as in her initial statement she alleged that she had been taken away from the Railway Station on the date she reached Manikpur, whereas in her second part of statement the witness deposed that she had gone to her Bhabhi namely Ganga, where she stayed in the night and on the next day when she gone Railway Station, she has been forcibly dragged by the appellant. As per the statement of PW-7 she had been dragged from the Railway Station to rented accommodation, there is not a single witness who has produced during trial who allegedly had been seen the appellant dragging Gaudia or even being in her company.

10. Per contra, learned A.G.A. appearing for the State vehemently opposed the case of the argument and submitted that the prosecution has proved its case beyond reasonable doubt. All the prosecution witnesses supported the case of the prosecution and no material contradictions in the statement of ocular evidences. After perusal of the evidences on record, the chain of the circumstances of evidence has been completed and the accused-appellants is directly connected to offence committed by him. Therefore, the appeal lacks merit and deserves to be dismissed.

11. We have considered the rival submissions made by learned counsel for the parties and perused the materials available on records.

12. Before we proceed to examine the impugned judgment of the court below and the facts of the case, it may be desirable refer to settled legal position which has to be applied in the instant case.

13. The case rested entirely on circumstantial evidence. The circumstances which weighed with the trial court were that. i) Dead body of the 1-½ years child was found in the rented house of the appellant. The appellant was seen by the witnesses to came out from the room where the dead body was found. The statement of Gaudia, PW-7 connects the accused with the crime and on that basis trial court has connected the accused-appellants for offence punishable under Sections 302/34, 201/34 and 328/34 I.P.C.

14. There are no eye witnesses to the crime. In the case which vests on circumstantial evidence, the law postulates a two fold requirements. First, every link is the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be considered only with the guilt of the accused.

15. In State of Rajasthan vs. Kheraj Ram, (2003) 8 SCC 224, the Hon'ble Supreme Court held :

"can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person - Thus, the circumstances have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."

16. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, the Hon'ble Supreme Court held :

"For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or "factum probandum" may be proved indirectly by means of certain inferences drawn from "factum probans", that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether."

17. In Subimal Sarkar vs. Sachindra Nath Mandal, (2003) 2 SCC 566, the Hon'ble Supreme Court held :

"Prosecution has to establish all the links in the chain of circumstances so as to prove that in all probability it was only the accused persons who could have committed the crime."

18. In Hanumand Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, the Hon'ble Supreme Court held :

"In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof.

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

19. In Evadu vs. State of Hyderabad, AIR 1956 SC 316, the Hon'ble Supreme Court held :

"It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused."

20. In view of the above discussions, the principle of the circumstantial evidence cases has been consistently formulated as follows:

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence".

21. When a case rests upon circumstantial evidence, such evidence must satisfy three tests: (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstance should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

22. We have to analyze the testimony of PW-7 Gaudia, who is a key witness of the prosecution. PW-7 Gaudia stated in her testimony with respect to the time and date when she had taken away by the accused-appellants from the Railway Station, there are material contradictions in the statement regarding the time and date. She stated in her initial statement that she had been taken away from the Railway Station on the date when she reached Manikpur, whereas in her second part of statement she deposed that she had gone to her Bhabhi namely Ganga, where she stayed in the night and on the next day she gone to Railway Station where she has been forcefully dragged by the appellant. As per the statement of PW-7 Gaudia, she had been dragged from the Railway Station to rented accommodation, where the accused was staying but there was no single witness produced to prove the allegation made by Gaudia that she was dragged from the Railway Station. It is also create a doubt that PW-7, Gaudia had not tried to seek help from anybody in the way from the Railway Station to the rented house of the accused. After perusal of the depositions of the other witnesses, it is found that material contradictions in their testimonies. Therefore, in the instant case, the conduct of PW-7 is unnatural and unbelievable, her testimony cannot be accepted. There are many improvements and contradictions in evidence of PW-4, PW-5, PW-6 and PW-7, what they had made during investigation when compared with that recorded in the court. Prosecution story so inextricably mixed up with falsehood that separation of truth from falsehood is not possible. Evidence as a whole unworthy of credence. The prosecution has also failed to connect the appellant in the said crime. Therefore, in the present case, the prosecution has failed to establish a complete chain of circumstances and to exclude every hypothesis other than the guilt of the appellants.

23. In the present case, there may be suspicion against the accused-appellants, but the suspicion cannot take the place of evidence. The evidence on the record falls short of proving the guilt of the appellants-accused all reasonable doubt.

24. Having regard to the above, we allow both the jail appeal Nos.712 of 2010 and 713 of 2010 and set aside the common order/judgment dated 24.11.2009, passed by the Additional District and Sessions Judge, Fast Track Court No.11, Chitrakoot in S.T. No.120/2007. It is directed to release the accused persons namely Mewa Lal and Savitri from jail forthwith, if they are not required in any other case.

25. The Registry is directed to sent the certified copy of the judgment and all original record of this case to the concerned court below for compliance.

Order Date :- 19.12.2017

Jitendra

(Chandra Dhari Singh,J.) (Shri Narayan Shukla, J.)